Legal Publishing: Open Access, Open Minds, Open Wallets

I found it challenging recently to be asked if I have any further observations or opinions in relation to open access to the law book environment. The short answer is, “probably not”, but the fault for that is mine. However, given that the significant issues relate almost exclusively to primary legal materials, most of what needs to be argued on that is done elsewhere.

However, I do think that the question of open access in legal information publishing is entirely bound up with other related ones. Open access is part of an innovation debate. Key issues include the viability and future of law book publishing by whatever media, online legal content in general and matters of profitability and growth. Feit Consulting’s research, although I cannot comment on its purposes, methodology or objectivity, particularly as the report ends with a call to use its services, declares the end of law books, an opinion that I was first pressured seriously to embrace, as a short-term prospect, in a law publisher’s annual budget in approximately 2005; House of Butter’s judgment on the topic is perhaps more open-minded and circumspect, but a published interview with Michael Feit, primarily on legal information vendor pricing, has value. Indeed, Simba Information’s Scholarly & Professional E-Book Publishing 2020-2024 report reveals that electronic books are an increasingly important segment for scholarly and professional publishers. Within and inseparable from these issues are questions of authors, their skills and requirements, all now under the cloud of Covid, which, to some extent, will affect the future.

In my view, the focus should not be primarily on cost reduction. “Working smarter” and “working cheaper” are not the same. The costs and complexities of doing high-quality, high added-value law publishing are significant and the temptation to dumb-down in order to try and get by “on the cheap”, maybe to create an impression of open access, are in evidence. For example, I am, inter alia, the editor of Barbican Association Newsletter, which is accessible to all, free of charge. This depends, of course, on its authors and me providing our services at no cost, and production and distribution funding coming from local government, which in turn relies on the taxes and charges which I and others pay. It is said that there are no “free lunches”.

Law publishing’s sustainability, expressed in the commercial sector’s ability to deliver profits and growth from analytical writing and publishing, is increasingly questionable and it is debatable as to whether or not open access helps; I would suggest, probably not greatly, especially combined with Covid factors and profit margins which have been reducing over time. Some publishers appear to boast the profit benefits of OA engagement, particularly for those many publishers that are prepared for the writer/sponsoring institution to pay for OA publication, though only for certain editorial costs, while quality assurance standards are outside their scope and production and value-add work are often off-shored. Some demand the supply of material to a set publisher template, which even removes that production investment cost. Meanwhile, their OA platforms monitor the usual visitor data to allow them precisely to target other offerings to third parties. This might pre-suppose lesser regard for the standards of the material being published and having the funds available to create the initial OA website. Perhaps, this plays to the perceived (to some) decline in academic standards (perhaps not helped by possibly dubious entry requirements to universities in Covid times), personnel and the proliferation of universities of variable quality, the impact of all of which being carried forward, if it is the case, into the professional world. Then, others will have taken steps to protect against themselves contractually, the reasoning being that they are not going to invest in a project only to have to give it away free of charge. A consequence is contractual provisions, along the lines that the author must warrant that they write the work solely in a personal capacity and that they are not the beneficiary of third-party funding directly applicable or relevant to it, in ways that may give rise to any demand by that third-party funder for the publisher or author to provide open access to the publication. There are other initiatives here and there to popularise legal content, but issues of fair compensation, maintenance of quality standards and appropriate curation are often left unaddressed. Professor John Willinsky discusses the question, in limited and defined circumstances, of fair compensation to publishers in OA applications.

In this discussion, authors cannot be forgotten. What is in it for them? Their earnings from their efforts are normally pitiful, yet their contributions are enormous but undervalued. We witness a diminution of innovation in the reduced amount of new publishing ideas and see a focus on rehashing old ones. Thereby, for prospective authors with new ideas, certainly when there is any hope of financial reward, securing publishing deals might be becoming harder.

Rather, of late, we seem to be seeing several initiatives by which efforts to access and deliver English-language, Common and Civil Law-focused, book-based content by publishers which are weak on added-value content, from others which have long invested in it. Perhaps there are no shortcuts, even when tough times make them look attractive.

This might be the time of year for some commercial publishers and their customers to be preparing their 2021 budgets, looking forward to uncertainty and back upon the 2020 pandemic experience and its effects; some, of course, will have profited greatly from these events and will continue so to do. I think that in the interests of their reputations, their sustainability and their clients, law firms would be well advised not to see high-added value legal information as an area for economies, but rather to use them as providing a key basis for operating as competent legal advisers. Of course, that will not happen, and legal information budgets will again be cut. Recently, being involved in two separate engagements with legal and other professional advisers, I had direct experience of some of the low-quality standards of their efforts, though I would not, of course, want to generalise from a recognisable particular. On a wills and probate matter, wherein over eight months’ delay was caused by simple and basic inefficiency, incompetence (in that case, caused by the attachment of a staple) and the absence of proper control mechanisms, the pitifully hapless lawyer wrote Good news at long last! I was able to get in contact with the probate office today, which advised that the query related to whether the original document had been filed (because it has been stapled!). We are going to swear an affidavit to confirm that the stapled document is an original one and get it down to the court office this week”. In another, related to a property transaction, similar delay, failure to liaise and communicate and lack of care and attention on the part of professional advisers, while at the same time allowing fees to mount and necessitating convoluted workarounds, in the end caused the project to collapse. It seems that everyone who uses lawyers has their horror stories about them to recount.

Yet, good (but not bad or mediocre) law publishers can be their salvation and legitimisation. Particularly, small and medium-sized law firms should invest in resources that facilitate, or even give an impression of expertise, effectiveness and efficiency. I am only one among countless others who suggest that legal advisers need to operate at the highest level of professionalism and expertise but also be measurably and competitively efficient; doing things on the cheap is a possible road to ruin, so some space should be made for knowledge. Better savings might come with reductions in premises costs, probably as, after inevitable redundancies, reduced numbers of people overall continue to work remotely, and the cost and efficiency benefits that might accrue from better and greater use of technology, forming part of future budgets. Fastcase’s acquisition of the Judicata legal research platform and the launch in Ireland, on the vLex Justis platform, of Vincent, an AI-driven legal research tool, might put further price pressure on the major legal information providers. The past few years and almost certainly those to come, with respect for the rule of law being diminished from government downwards, notably but certainly not only in the UK and the USA, reinforce the hope, probably in vain, that lawyers care about and will invest in good legal practice resources.

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